Matthew T. Mangino: The shame of forced sterilization continues

Friday

Feb 9, 2018 at 9:50 AM

A federal judge in Oklahoma once told a woman involved in a counterfeiting ring that he would consider — as part of her background, character and conduct — whether she would undergo a “voluntary” sterilization, or as he put it she was “rendered incapable of procreation.”

A federal judge in Oklahoma once told a woman involved in a counterfeiting ring that he would consider — as part of her background, character and conduct — whether she would undergo a “voluntary” sterilization, or as he put it she was “rendered incapable of procreation.”

This issue didn’t come up in some dusty old courtroom in 1917 — 10 years after Oklahoma became a state. No sir, it came up in 2017. The woman was sterilized in November and is scheduled to be sentenced this week.

The stink of forced sterilization permeated the first part of the 20th Century.

In 1907, Indiana became the first state to enact sterilization legislation, followed closely by California and soon a majority of states.

At the time, sterilization was about two things — Eugenics, trying to escape the imperfections of heredity and punishing people for criminal conduct. Sterilization rates across the country were relatively low, until 1927 and the U.S. Supreme Court decision in Buck v. Bell.

Buck v. Bell was not the high-water mark for U.S. Supreme Court jurisprudence and was certainly not the jewel of the hundreds of opinions written by long time justice, Oliver Wendell Holmes Jr.

In fact, the tragedy of Buck v. Bell was vividly portrayed by Maximillian Schnell in his Academy Award-winning performance as an attorney representing a judge at the Nuremberg war trials. Schnell read from a passage in Buck v. Bell and then slowly revealed that it was written by “Oliver ... Wendell ... Holmes.”

What Holmes wrote in 1927 was: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind ... Three generations of imbeciles are enough.”

That decision and the work of eugenicist Harry H. Laughlin were the framework for the Nazi sterilization program.

In 1933, the Nazi’s enacted a law that provided for compulsory sterilization of any person who, according to the opinion of a "Genetic Health Court," suffered from a genetic disorder. Under Nazi rule, over 400,000 people were sterilized against their will.

After World War II, public opinion toward eugenics and sterilization programs soured in light of their connection with the Nazi atrocities.

In this county, the practice of forced sterilization has stopped, or so we thought. If you think a so-called “voluntary” sterilization was not forced, think again. Imagine a judge tells you “if you do this, (sterilization) I might act favorably toward you” — would you feel compelled to do it?

Some states feel the shame. In 2013, North Carolina announced that it would spend $10 million to compensate men and women who were sterilized in the state's eugenics program. North Carolina sterilized about 7,600 “mentally unfit” people from 1929 to 1974.

Unfortunately, the quest to sterilize wrongdoers continues. In the early and middle part of the 20th century, sterilization was used to thwart those in institutions for the “Feebleminded.” Today, the targets are men and women in prison.

In 2015, a criminal case in Tennessee involving a mentally ill woman and a controversial plea bargain ignited outrage over the proposed use of sterilizations as a bargaining chip in plea negotiations.

The Tennessean reported that a 36-year-old woman had been charged with neglect after the death of her 5-day-old baby. The prosecutor would not go forward with a plea bargain to keep her out of prison unless she agreed to undergo a sterilization procedure.

After a buzz of media attention, the DA withdrew the plea.

In an interesting twist, the assistant U.S. Attorney in the pending Oklahoma case said the defendant “has a fundamental constitutional right to procreate ... (and her) decision to have additional children ... is irrelevant to determining a sentence."

Such an ugly time in our history should not be so easily forgotten or set aside by the very people we expect to protect the helpless and downtrodden.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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